If Thailand accepts the intellectual property law in the course of the negotiations for the Free Trade Agreement of EU-Thai, Thailand would have to amend its 1999 Plant Varieties Protection Act to make Thai law consistent with the 1991 UPOV Convention.

The biothai.org post goes on to spell out how such a move is likely to affect Thai agriculture:

Thailand would have to amend its laws. It would have to abandon the principles of requesting prior authorization and benefits sharing in relation to the development of new plant varieties. This would mean that the seed companies, multinational bio-tech companies, and the big agri-businesses would not need to make a request nor share benefits when they exploit wild plants or widely available plants and local plants to develop new varieties.

That's a classic case of exploiting the plant commons without sharing any of the benefits that flow from doing so. Extended monopoly rights will make things even worse, and undermine traditional farming traditions:

Thailand would have to extend the period of corporate monopoly rights over new varieties from 12 years in most cases, to 20 years. In addition, it would open up a loophole in the law for private companies to prevent farmers from collecting seeds of the new varieties for planting in the next season, as well as preventing them from distributing and exchanging seeds with neighbours both inside and outside their community, which is a common cultural practice of farming communities.

Biothai.org believes that these changes would mean local farmers paying three times the current price for seeds, and that corporations would soon gain complete control of the seed business. Those are all depressingly familiar consequences of giving up plant and seed sovereignty, but the biothai.org story contains the following novel aspect:

Compliance with demands of the European Union or hasty government amendments to domestic laws allows the government to claim that Thailand did not amend any laws on account of the EU-Thai FTA negotiations.

That's noteworthy, because there's evidence that the European Commission is aiming to implement key US demands for TAFTA/TTIP before negotiations are completed so that it too can claim that it did not amend any laws on account of it. If the biothai.org post is correct, it's a sneaky trick that seems to be spreading.

[President of the New Zealand Open Source Society Dave] Lane said leaks of the negotiating position show that at one point only Mexico was holding the line on software patents and New Zealand appeared to have already conceded.

The implication is New Zealand's new software patent law, passed just two years ago, will need to be reversed if the TPPA is inked.

Lane went on to echo a point Techdirt made about TPP a couple of years ago:

if New Zealand hobbles the domestic software market by adopting US strong IP, strong patent and copyright terms, then we are effectively "killing in the cradle" an industry that is projected to soon surpass dairy.

Strong IP, he said, was used by incumbents to block innovation and competition from would-be competitors and disruptors.

A strong software industry offers a weightless export that allows New Zealand to rise above the commodity fray of dairy, meat production and timber.

In other words, desperate to sign up to the TPP agreement, however bad, the New Zealand government seems willing to sacrifice 21st-century growth for the sake of shoring up 19th-century industries -- and to ride roughshod over democracy along the way. So much for the common but bogus claim that trade agreements like TPP or TAFTA/TTIP will not require laws to be changed.

from the chilling-effects dept

It has long been evident that TAFTA/TTIP is not a traditional trade agreement -- that is, one that seeks to promote trade by removing discriminatory local tariffs on imported goods and services. That's simply because the tariffs between the US and EU are already very low -- under 3% on average. Removing all those will produce very little change in trading patterns. The original justification for TTIP recognized this, and called for "non-tariff barriers" to be removed as well.

Those "non-tariff barriers" include regulations and standards introduced to protect the public -- for example, through health and safety laws or environmental regulations. Removing those "barriers" in order to increase trade might be great for companies, but increases the social costs through weakened protection for the environment, or greater health risks. The outcry caused by this prospect has led both negotiating parties to insist that TTIP will not lower standards.

But it's hard to see how those non-tariff barriers can be harmonized without a race to the bottom in terms of regulations, since no one is calling for a race to the top. Even "mutual recognition," which would allow both standards to be used, would inevitably see the lower standard becoming the norm because it would be cheaper to implement, and thus offer competitive advantages.

However, a leak back in December 2013 gave a clue about how it might be possible for the US and EU governments to promise that the TAFTA/TTIP agreement would not lower standards, and yet provide a way to dismantle those non-tariff barriers (pdf). This would be achieved after TTIP was ratified, through the creation of a new body called the Regulatory Council, which would play a key role in how future regulations were made. Effectively, it would provide early access to all new regulations proposed by the US and EU, allowing corporations to voice their objections to any measures that they felt would impede transatlantic trade. This regulatory ratchet would push standards downwards and reduce costs for business, but only gradually, and after TTIP had come into force -- at which point, nothing could be done about it.

Since then, things have been quiet on the regulatory front, not least because corporate sovereignty in the form of investor-state dispute settlement emerged as the most contentious issue -- in Europe, at least -- which has rather eclipsed earlier concerns about this supranational regulatory body. But now, in a single week, we have had two important leaks in this area, both confirming those initial ideas sketched out in 2013 are still very much how TAFTA/TTIP aims to bring about the desired regulatory harmonization.

According to the proposal, as soon as a new regulation is in the pipeline, businesses should be informed through an annual report, and be involved. This is now called "early information on planned acts", until recently called “early warning”. Already at the planning stage, "the regulating Party" has to offer business lobbyists who have a stake in a piece of legislation or regulation, an opportunity to “provide input”. This input "shall be taken into account" when finalising the proposal (article 6). This means businesses, for instance, at an early stage, can try to block rules intended to prevent the food industry from marketing foodstuffs with toxic substances, laws trying to keep energy companies from destroying the climate, or regulations to combat pollution and protect consumers.

Along with this new opportunity for lobbyists to try to shape, slow down or even block new regulations, the EU proposes to hand them a powerful weapon -- the impact assessment:

New regulations should undergo an "impact assessment", which would be made up of three questions (article 7, reduced from seven in the earlier proposal):

- How does the legislative proposal relate to international instruments?
- How have the planned or existing rules of the other Party been taken into account?
- What impact will the new rule have on trade or investment?

Those questions are primarily tilted towards the interests of business, not citizens. Thanks to the “early information” procedure, businesses can make sure their concerns are included in the report, and should it go against their interests, the report will have to cite a detrimental impact on transatlantic trade.

As Corporate Europe Observatory points out, the only criteria taken into account are impacts on trade or investment. So, for example, new environmental rules might well do wonders for reducing air pollution, but if they have an adverse effect on US or EU companies' sales or investments, they would be marked as undesirable. This is likely to have a severe chilling effect on bringing in new standards that protect the public but might impose new costs on business.

The Joint EU/US Financial Regulatory Forum shall agree on detailed guidelines on mutual reliance adapted for each specific area of financial regulation no later than one year from the entry into force of this agreement.

That is, the European Commission wants the US to sign up to TTIP without any specification of exactly how the new Financial Regulatory Forum will work, or what powers it will have. This seems a clear effort to sneak in elements later that the US is currently resisting.

What these important leaks confirm is that the regulatory co-operation that lies at the heart of TAFTA/TTIP would undermine sovereignty on both sides of the Atlantic. The Regulatory Cooperation Body would provide an important new forum for corporate lobbyists to intervene even earlier in the life of proposed rules and regulations than they do now -- and long before lawmakers have a chance to express their views. The end-result is likely to be an impoverishment not just of public policy-making, but of democracy itself.

In the world of official government announcements, a two-paragraph media release sent out in the late afternoon on the Friday before Parliament resumes sitting is the best way for a government to admit, "We know this is really, really unpopular, but we're doing it anyway."

That's the way the Harper government, by way of a release quoting Trade Minister Ed Fast, announced that it had decided to ignore widespread public opposition, parliamentary opposition from the NDP, Greens and even lukewarm Liberal criticism, an ongoing First Nations legal challenge, and even division at its own cabinet table and grassroots membership and proceed with the ratification of the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA).

The key problem, as is increasingly the case with international agreements, is the inclusion of far-reaching investor-state dispute settlement (ISDS) measures that would allow China to sue the Canadian people. Here's what the treaty law expert Gus Van Harten told the Vancouver Observer:

"It is true that Chinese investors can sue Canada for any actions by the federal government or the [British Colombia] government (or legislature or courts) relating to Chinese assets connected to the [Enbridge] Northern Gateway pipeline," Van Harten said.

China's investment in Canada is huge: Chinese companies have invested over $30 billion in Canada's energy industry alone. That means there is plenty of scope for new regulations or laws to affect those investments, and to give rise to claims -- or for those regulations and laws to be dropped because of such a threat. The deep secrecy surrounding FIPA even extends to ISDS actions:

"there is no requirement in the treaty for the federal government to make public the fact of a Chinese investor's lawsuit against Canada until an award has been issued by a tribunal. This means that the federal government could settle the lawsuit, including by varying its conduct in a way that many Canadians would oppose, or by paying out public money before an award is issued, and we would never know."

As the Council of Canadians post mentioned, the Canadian government has ratified this agreement even though a major legal challenge against it is still pending -- effectively making the decision irrelevant. That's because of another astonishing aspect of the deal, explained by Van Harten as follows:

"Even if found unconstitutional by a court down the road...once the treaty has been ratified, none of the obligations assumed by Canada can be modified unless China agrees," he said.

In other words, the agreement, which runs until 2045, has given itself priority over Canada's constitution for the next 31 years. That abrogation of government power and the erosion of democracy it entails both emphasize how completely corporate sovereignty now trumps the old-fashioned, national kind.

The policies of other TPP nations criticized by the 384-page USTR report include New Zealand's popular health programs to control medicine costs, an Australian law to prevent the offshoring of consumers' private health data, Japan's pricing system that reduces the cost of medical devices, Vietnam's post-crisis regulations requiring banks to hold adequate capital, Peru's policies favoring generic versions of expensive biologic medicines, Canada's patent standards requiring that a medicine's utility should be demonstrated to obtain monopoly patent rights, and Mexico's "sugary beverage tax" and "junk food tax."

None of those is a real trade "barrier", but rather a policy choice seeking to bring about certain results that presumably correspond to the wishes of the local electorate. The cultural aspects of these so-called "barriers" are even clearer in the case of Malaysia:

The report takes issue with Malaysia's "extremely high effective tariff rates" on alcohol and its strict licensing policy for the importation of pork -- strange "barriers" to highlight in a country where three out of every five people are Muslim. Malaysia's halal standards for meat have also been targeted as a "barrier" in a companion USTR report on Technical Barriers to Trade (published in 2013, the most recent edition available). USTR is concerned that Malaysia requires "slaughter plants to maintain dedicated halal production facilities and ensure segregated storage and transportation facilities for halal and non-halal products."

Again, it's quite evident neither of those has anything to do with "market distortions", and everything to do with the fact that Islam is an important cultural element of Malaysian society. It is only natural that its laws and regulations should reflect that. Similarly, the following is likely to be an expression of Japanese society itself, not some evil plan to shut out foreign companies:

The report critiques Japan's laws protecting the privacy of citizens' personal data, calling them "unnecessarily burdensome." The U.S. government, according to the report, "has urged the Japanese government to reexamine the provisions and application of the Privacy Act, so as to foster appropriate sharing of data..."

Presumably those laws were passed because the Japanese value their privacy, and specifically wish to limit the sharing of personal data. But the USTR seems to think it is reasonable to demand that Japanese society change its attitudes in order to make the laws less "burdensome" to US companies operating there. The Japanese section also contains the following:

The report calls for "timely and accurate disclosure" of key texts related to Japan's postal reform, and "public release of meeting agendas, meeting minutes, and other relevant documents." In contrast, leaks have revealed that the United States and other TPP countries have agreed to keep TPP texts classified until four years after the agreement enters into force or talks collapse.

The lack of transparency for TPP is no simple matter of hypocrisy: it is an assault on local democracy. That's because the TPP negotiations are not haggling over a few tariffs, they are imposing a wide range of economic and social norms for an entire region. Conducted in secret, without any meaningful input from the people who will be most affected, these new-style agreements undermine the usual legislative process. This shift is yet another reason why TPP, TTIP and TISA must be opened up to allow greater public participation and input. If they are not, they are likely to be perceived as something imposed from above, and lacking in legitimacy. That's precisely what happened with ACTA; it led to tens of thousands of people taking to the streets, and ultimately rejection by the European Parliament.

from the national-sovereignty,-who-needs-it? dept

One of the myths perpetuated by governments taking part in major international treaty negotiations like ACTA, TPP and TAFTA/TTIP is that somehow no national sovereignty is given up during the process, and that therefore the public shouldn't worry about what goes on in those secret meetings. That's clearly absurd, because negotiations involve concessions, usually by the weaker parties, which often touch on national competences.

New Zealand's copyright laws were meant to be reviewed this year, five years after the Copyright (New Technologies) Amendment Act in 2008. The government, has decided not to stick to this timetable, waiting instead to know what terms it may have to agree to under the TPP.

That is, instead of consulting with the New Zealand public and other stakeholders about what form copyright fit for the digital age might take, the government there has cancelled all discussions, and is waiting meekly to be instructed by the TPP negotiators -- the US, in other words -- what changes they will be required to make to their legislation in order to comply with the treaty.

To add insult to injury, it seems that the New Zealand government won't even explain why exactly its electorate is being deprived of any say in the laws that will govern it:

Papers released under the Official Information Act last week reveal that the government will delay the 2013 copyright law review until "TPP negotiations have concluded". The reasons given for the delay have been removed from the public version of the document.

That really sums up the TPP negotiations: conducted in secret, coming to decisions that are then imposed on the public for reasons they are not allowed to know, regardless of previous plans and promises made by their governments. No wonder more and more people view trade agreements as lacking in any kind of legitimacy. Expect the TAFTA/TTIP negotiations to be exactly the same -- and for the same fatuous claims to be made by those taking part that national sovereignty is not being surrendered.